DECISION ON PROSECUTION’S MOTIONS TO
STRIKE HALILOVIC’S REDACTED FINAL TRIAL BRIEF
AND TO STRIKE HALILOVIC’S “DEFENCE
FINAL TRIAL BRIEF PUBLIC
REDACTED VERSION”

______________________________________________

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, (“Trial Chamber”)
of the International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991 (“Tribunal”);

BEING SEISED of the Prosecution “Motion to strike
Halilovic’s redacted final
trial brief”, filed on 9 September 2005 (“First Motion”),
by which the Prosecution argues that the Defence redacted
final trial brief
1
“is unfair to the Prosecution and violates the principle
of the equality of arms
” 2 because
it is “almost twice the
size” 3 permitted
by the “Practice Direction
on the Length of Briefs and Motions” (“Practice Direction”)4
as extended by the Trial Chamber’s oral order of 30
August 2005 (“Order”),
5
and, consequently, that the redacted final trial brief
should be struck from the trial record and replaced
by a new final trial brief “of the greater of 250 pages
or 75,000 words”;
6

ALSO BEING SEISED of the Prosecution “Motion
to strike Halilovic’s ‘Defence
final trial brief public redacted version’”,
filed 13 September 2005 (“Second
Motion”), by which the Prosecution argues that the
public redacted version of the Defence final trial
brief 7 should
be struck from the trial record because, while being
shorter than the permitted 250 pages, at 145,061 words8 it
still remains
“almost twice as long as authorised”,9
which causes “incurable procedural prejudice to the
Prosecution”;10

NOTING the Defence “Response to Prosecution
repeated motions to strike Defence final trial brief”,
filed 16 September 2005 (“Response”), by which the
Defence argues , in particular, that the Prosecution
has failed to show prejudice, that it is not in the
interest of justice at this point in the proceedings
to strike the Defence brief, that clause (B) of the
Practice Direction “refers to the body text of the
brief, and not to its footnotes”, that clause (C)4
of the Practice Direction should be read in the alternative,11 and
consequently that both motions should be denied;

NOTING that the Practice Direction contains
formatting rules for, inter
alia, final trial briefs “in order to establish
a limit on the length of written briefs and motions
at trial and on appeal”;12

NOTING that clause (B) of the Practice Direction
provides that “typeface
will be 12 point with 1.5 line spacing”,13
that an “average page should contain fewer than 300
words”, 14
and that clause (C)4 provides that final trial briefs “will
not exceed 200 pages or 60,000 words, whichever is
greater”; 15

NOTING that upon request a Chamber may, where
exceptional circumstances have been shown by the moving
party, extend the page limit imposed by the Practice
Direction ; 16

CONSIDERING that clause (C)6 of the Practice
Direction provides clearly that
“headings, footnotes and quotations count towards the
above word and page limitations
” and that there is nothing in the Practice Direction
that supports the Defence’s
submission that clause (B) of the Practice Direction
does not refer to both the body text and the footnotes;

CONSIDERING HOWEVER that it is unreasonable
to require footnotes to be formatted in accordance
with the first part of clause (B) provided the demands
of legibility and accessibility of the text are met,
something which is particularly important when the
filing party, as does the Defence in the current case,
makes extensive factual and legal argument in the
footnotes;

CONSIDERING that a typeface size of eight points,
as used in the Defence brief, does not fully meet
this standard;

CONSIDERING that the rationale behind the Practice
Direction mandates that its provisions be read together
and that, in particular, clauses (A) and (B) be considered
with the relevant sub-section of clause (C) when determining
the formatting and permissible length of a brief or
a motion;

CONSIDERING THEREFORE that the Defence’s argument,
that Practice Direction clause (C)4 sets a requirement
in the alternative, is without merit;

CONSIDERING that the Defence final trial brief
fails to comply with the Practice Direction’s word
limitations, as extended by the Order, by a factor
of almost 2- 1, and that this failure is so evident
that Defence counsel must have been aware of it when
drafting or redacting each version of the final trial
brief;

CONSIDERING that the Defence, in the face of
the unambiguous Order specifying the limitations with
regard to the final trial brief, filed two versions
of the final trial brief which were not in conformity
with the Practice Direction;

CONSIDERING that in view of the clear language
of the Practice Direction and the Order and in case
the Defence was in any doubt as to whether its final
trial brief was in conformity with the requirements
of the Practice Direction as extended by the Order,
the Defence could have sought clarification from the
Trial Chamber , which would have saved significant
time, efforts and resources for all parties involved;

CONSIDERING THEREFORE that the Defence has breached
the Practice Direction and the Order;

NOTING that after the Defence on 25 August 2005
had filed the first version of its final trial brief,
which was 244 pages long and contained 147,566 words,
the Prosecution requested a one-day postponement of
the closing arguments scheduled for Monday 28 August
2005, which “extra day (would( allow the Parties additional
time to prepare a proper response to opposing arguments”;17

NOTING that the Prosecution’s request was granted
and that the closing arguments were held on Tuesday
30 and Wednesday 31 August 2005;

CONSIDERING that the Prosecution had the opportunity
before the closing arguments to request a postponement
longer than one day, and that as the Prosecution did
not do so the Trial Chamber is unable to draw any
other conclusion than that, in the Prosecution’s opinion,
the one-day postponement was sufficient to examine
the Defence final brief;18

CONSIDERING that the Prosecution’s argument,
that had it “known in advance
that the Defence desired to file a (redacted( brief
almost two and a half times the size permitted (…(
the Prosecution would have requested an extension of
the page limits”, is devoid of substance because it
was open to the Prosecution to request an extension
of pages irrespective of any such request by the Defence
should the Prosecution have considered that the number
of pages permitted under the Practice Direction was
insufficient in order to adequately present its case,
and NOTING
in this respect that the redacted and the public
redacted versions of the Defence final brief did not
increase, but actually decreased, in size as compared
with the first version of the brief filed on 25 August
2005;19

CONSIDERING that the Prosecution’s submission
in the First Motion that it
“is unable to respond to the length and depth of factual
and legal argument contained in the additional 233
or so pages filed” is misguided, and in fact moot,
as the Prosecution, after having been granted the
one-day extension it requested, responded to the content
of the first version of the final trial brief, which
was the most extensive of the three versions, and
as the case was at the time of the First Motion closed
in accordance with Rule 87(A) of the Rules of Procedure
and Evidence (“Rules
”);

CONSIDERING THEREFORE that, while the Defence
final trial brief fails to comply with the Practice
Direction’s requirements as extended by the Order,
the Trial Chamber is unable to discern any prejudice
or harm to the Prosecution at this point in the proceedings
when the case has been closed;

REITERATING the Trial Chamber’s statement at
the hearing on 30 August 2005 that “no new […] motions
shall be accepted or entertained unless there are some
very extraordinary circumstances or unless there is
something left over from the proceedings”;20

CONSIDERING that at this stage of the proceedings
it is neither in the interests of justice, nor in
the interests of procedural economy to grant the motions,

FOR THE FOREGOING REASONS,

PURSUANT TO Rule 54 of the Rules,

HEREBY DENIES both Motions.

Done in English and French, the English version being
authoritative.

_____________
Judge Liu DaqunPresiding

Dated this twentieth day of September 2005,
At The Hague,
The Netherlands